Skip to content


Naniben D/O. Narsinh Vanmali Vs. Maganbhai Durlabhbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR245
AppellantNaniben D/O. Narsinh Vanmali
RespondentMaganbhai Durlabhbhai and anr.
Cases ReferredIn Banarasi Debi v. The Income Tax Officer
Excerpt:
- - patel, however, vehemently argued that a different intention clearly appears because section 32t(3) provides that the notice must be served on or before december 31, 1961. therefore, the notice was actually served on the tenant on january 2, 1962, it could never be held to have been served as required by the section by resorting to this statutory fiction......mamlatdar is concerned, it is sufficient if it is sent at the same time while in the case of the tenant service must be on or before december 31, 1961, as per the decision of the division bench that this provision must be held to be mandatory provision.4. however, in the present case the further question has arises which was never considered as to whether section 32t(3) authorises the notice to be served by post so that section 28 of the bombay general clauses act, 1904, can be attracted to the facts of any such case. the revenue tribunal was unable to point out any provision in the act which would authorise service of such notice by post. when we turn to section 3 of the act it in terms provides as under:the provisions of chapter v of the transfer of property act, 1882, shall in so.....
Judgment:

J.B. Mehta, J.

1. The petitioner landlady has filed these two petitions against the two tenants as her application under Section 32T on the basis of the certificate under Section 88C has been dismissed by the order of the Revenue Tribunal, dated February 22, 1965. As both these petitions raise common questions they are disposed by this common order:

2. As regards the common question in the two petitions as to the findings that the petitioner landlady did not bona fide require the lands in question for personal cultivation, the Revenue Tribunal has mixed up the requirements of Section 31 with Section 32T. Under Section 31(1)(a) the landlord is given a right to terminate the tenancy of lands if he bona fide required the same for personal cultivation. However, further restriction was put on this right of termination for cultivating the land personally under Section 31 and by reason of Section 31A(c) which required that he must fulfil the following condition:

the income by cultivation of the land of which he is entitled to take possession is the principal source of income for his maintenance'. That is why the landlord's right of termination of tenancy on the ground of bona fide requirement for personal cultivation had to be decided by an application of the test laid down in Section 31A(c) that the income by cultivating of the land of which he was entitled to take possession was the principal source of income for his maintenance. This test has no relevance when the question is to be decided under Section 32T. Section 32T provides for termination of tenancy by a certified landlord who holds a certificate under Section 88C(4) of the Act and whose tenant is, therefore, treated as an excluded tenant. Section 32T(1) provides that notwithstanding anything contained in Sections 31 and 31B both inclusive but subject to the provisions of this section, a certified landlord may after giving notice and making an application for possession as provided in Sub-Section (3) terminate tenancy of any land leased to an excluded tenant if he bona fide required the land for cultivating it personally. In the entire Section 32T, even if the restriction in Sub-clause (5) are considered, there is no restriction similar to Section 31A and this right under Section 32T(i) is notwithstanding anything contained Section 31 and 3IB. It is obvious that the requirement of the bona fide and personal cultivation of the certified landlord has examined by an application of the test laid down under se Therefore, that test of the income by cultivation of the land of landlord is entitled to take possession being the principal source for maintenance has no bearing in the context of Section 321 Legislature duly made this distinction because the test of in con of different test was already applied in case of a certified lands the certificate was granted under Section 88C(4). Section 88C(1) in term that this exemption certificate would be granted if the landlord income including the rent of such land did not exceed Rs. 1500/- holding did not exceed the economic holding on the relevant to grant relief to these small holders whose annual income did Rs. 1500/- that this exemption under Section 88C was granted from signs of deemed purchase and a request was conferred under for enabling such a small landholder to terminate the tenancy leased to an excluded tenant if he bona fide requires such land cultivation. The Revenue Tribunal has in terms held in bo that the landlady cannot succeed unless she was able to estab needs for maintenance could not be fulfilled without the lands being acquired by her. It is, therefore, obvious that the Review had committed a patent error of law in applying a wrong the bona fide requirement of the landlady for personal Prant officer had come to a correct conclusion that the both the lands bona fide for her personal cultivation dispute that out of the three fields, one field was in the laund that only one field was in her personal cultivation. Therefore, this is a landlady who is capable of personal cultivation and her requirement in these circumstances is bona fide to augment her income by personal cultivation. This is not a case of a mere desire but she has actually established that she requires these lands and she bona fide intended to cultivate these lands personally and not to give them away to tenants or to sell them away. In fact, the Legislature itself has provided for restoration of possession, if the landlord does not cultivate personally the lard obtained from the tenant for personal cultivation after termination of tenancy. In that view of the matter, the finding of the Prant Officer that the landlady established her bona fide requirement for personal cultivation in both the cases must be restored. On that finding, Sp. C.A. No. 1166/65 must succeed as that is the sole question arising in that petition.

3. As regards the other Spl. C.A. 1167/65 there is an additional question as to whether the tenancy was duly required under the mandatory of Section 32T(3) of the Act. Section 32T(3) provides that the notice fired to be given under Sub-section (1) shall be in writing and shall be led on the tenant on or before December 13, 1961, and a copy thereof be same time be sent to the Mamlatdar and an application for shall be made thereafter under Section 29 to the Mamlatdar on or March 31, 1962. This section is similar to Section 31 which is other landlords. Under Section 31(2) the notice required to be or Section 31(1) shall also be in writing and shall be served on the or before December 31, 1956 and a copy thereof shall at the be sent to the Mamlatdar, and an application for possession aide thereafter under Section 29 to the Mamlatdar on or before I1f>57. In Special C.A. No. 103 of 1960-Saz Mani v. Mangalji, ily 12, 1960 the Division Bench consisting of S.T. Desai C.J.J. had interpreted this corresponding Section 31(2) by holding, ordinary and natural meaning of the expression shall be tenant on or before December 31, 1956', was that the notice may be issued or despatched but it shall be served on the date mentioned therein. It was also held that even though used in Section 31(1) was 'giving' of the notice, Section 31(2) in how the giving of the notice in Sub-Section (1) was required t was held that what was intended by the expression 'giving was actually service on the tenant and sending a copy at to the Mamlatdar. The Division Bench further held that of Section 31(2) was mandatory in the context of the entire for the protection of the tenants and as Section 31 was enacted to has which formerly were not vested in the landlord. In matter, the Division Bench refused to equate the issue of the notice on the tenant, j as that period even though necessary condition of making an application was that the previous notice should be given to the petitioner. The Maharashtra High Court, therefore, held that as this notice was made a condition for making an application to the Mamlatdar there must be only a substantial compliance with that provision that the notice should be given on or before the relevant date. It is true that in view of the binding decision of the Division Bench of this Court, this Maharashtra High Court decision cannot be preferred in so far as it holds the provision in Section 31(2) to be only directory provision and not a mandatory provision. It should, however, be noted that in the Maharashtra case this view was taken on the facts of that case as in the ordinary course the notice which was posted on December, 24, would have reached the tenant long before December, 31, and the landlord could not be blamed for the delay of the postal authorities for delivering at late. The conclusion was arrived at by treating the provision in Section 31(2) as a directory provision. That conclusion cannot be arrived at on the reasoning by us in view of the aforesaid decision of the Division Bench which holds the provision of Section 31(2) to be mandatory. But as we shall presently consider, the said conclusion would be correct because of certain other provisions of law which could be applied on the facts of that case. At this stage it would be only material to note that Section 32T(3), with which we are concerned is Pari materia in the same terms as Section 31(2). Therefore, in view of the aforesaid settled legal position we must hold that the notice under Section 32T(1) which had to be given in the manner defined in Section 32T(3) must be served on the tenant on or before December 31, 1961 and it would not be sufficient to say that the notice must only be issued before that date. The legislature itself has maintained that distinction between the words 'service on the tenant' and 'the copy being sent to the Mamlatdar at the same time'. Therefore, so far as the sending of the copy to the Mamlatdar is concerned, it is sufficient if it is sent at the same time while in the case of the tenant service must be on or before December 31, 1961, as per the decision of the Division Bench that this provision must be held to be mandatory provision.

4. However, in the present case the further question has arises which was never considered as to whether Section 32T(3) authorises the notice to be served by post so that Section 28 of the Bombay General Clauses Act, 1904, can be attracted to the facts of any such case. The Revenue Tribunal was unable to point out any provision in the Act which would authorise service of such notice by post. When we turn to Section 3 of the Act it in terms provides as under:

The provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases and land to which this Act applies.

Section 106 of the Transfer of Property Act provides for the notice of termination of a lease by providing that in the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy. The material several part of Section 106.

Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to be of his family or servants, at his residence, or if such tender or delivery is not practicable affixed to a conspicuous part of the property.

It is true that the provision of the period of notice which is mentioned in Section 106 would not apply in the present case where a specific inconsistent provision is made both in Sections 31(2) and 32T(3). However, as regards the mode of service of this notice in writing before the date specified, both the Sections. 31(2) and 32T(3) are silent. There being no inconsistent manner of service provided there are in Section 106 of the T.P. Act it is obvious that the present notice under Section 32T(3) or Section 31(2) for terminating lease could also be served in the manner laid down in Section 106 of the T.P. Act before that provision is in terms incorporated in the Act because of Section 3 which provides that the provision of Chapter V which includes Section 106 of the T.P. Act which in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases of land to which this Act applies. Therefore, it it obvious that even under Section 32T(3) so far as the manner of service of notice is concerned the legislature has authorised service by post. Once we come to that conclusion Section 28 of the Bombay General Clauses Act, 1904, provides for the meaning of service by post as under:

Where any Bombay Act or Gujarat Act made after the commencement of this Act authorises or required any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressed prepaying and posting by registered post, a letter containing the documents, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

5. This Section 28 would in terms apply to a notice under Section 32T(3) or Section 31(2) which authorises the service by post in such a case where the notice is served on the tenant. In such a case a notice of termination of the letter has been properly addressed and posted by registered post after prepaying the post such letter containing the document, in such a case unless the contrary is proved such service is deemed to be affected at the time at which the letter would be delivered in the ordinary course of post. It should also be kept in mind that unless a different intention appears it would rule out the application of Section 28 of the Bombay General Clauses Act, 1904, would not be ruled out. There is no question of a different intention for even Section 32T(3) or Section 31(2) do not provide that the application for taking possession to be made before the Mamlatdar should be within any specified period from the date of the service of the notice or that the tenant should be informed for any particular period in advance.

6. Mr. Patel, however, vehemently argued that a different intention clearly appears because Section 32T(3) provides that the notice must be served on or before December 31, 1961. Therefore, the notice was actually served on the tenant on January 2, 1962, it could never be held to have been served as required by the section by resorting to this statutory fiction. This argument of Mr. Patel cannot be accepted. Once we read the incorporation made by Section 3 of the Act or the relevant part of Section 106 T.P. Act the legislature has authorized service of the notice on the tenant to be made through post. Therefore, the meaning of service by post as given in Section 28 of the Bombay General Clauses Act would be applicable and once we come to this conclusion the service would be deemed to be effected at the time at which the letter would be delivered in this ordinary course of post and if such service on the tenant was deemed to be effected before December 31, 1961, the mandatory terms of Section 32T(3) or Section 31(2) are in terms complied with by reason of this fiction introduced by the statute. Mr. Patel also argued that this view would be inconsistent with the view of the Division Bench. In fact, the Division Bench had not considered this further question. The same is the position of my earlier decision in Spl. C.A. 1123/1965 decided on November 14, 1970, where the question was not canvassed on the footing of Section 3 of the Act which must be deemed to have incorporated and would authorise service on the tenant by post and thereby gives the same meaning of service by post as produced under Section 28 of the Bombay General Clauses Act, 1904. Therefore, there is no question of any inconsistent view being taken with that of the Division Bench or with my earlier decision where this question has not arisen at all. In Banarasi Debi v. The Income Tax Officer : [1964]53ITR100(SC) their Lordships had observed that the expressions 'issue' and 'serve' were used as interchangable terms both in dictionaries and other statutes. The dictionary meaning of the word 'issue' is 'the act of sending out, put into circulation, deliver with authority or delivery'. Their Lordships referred to Section 27 of the General Clauses Act which is in same terms as Section 28 of the Bombay General Clauses Act and observed that the Parliament used the words 'serve', 'give' and 'send' as interchangeable words. of the rule of interpretation laid down as to the meaning of serviceIn the relevant Section 34(1) of the Income Tax Act, 1922, their Lordships held that the intention of the Legislature was to give wider meaning to the expression 'issue' in the sense of service. In the present case also we have held that the service is not used in the narrower sense of issue of notice and the wider sense of service ''as been used of service on the tenant. But that does not preclude the application in Section 28 of the Bombay General Clauses Act or Section 27 of the Central General Clauses Act, in those cases where the legislature authorises service by post. In that view of the matter we must decide this question on the basis of the meaning of service of notice by post as given in Section 28 of the Bombay General Clauses Act, On the facts of She present case, it is not disputed that both these tenants are the true brothers residing at Dharmej village. The landlord posted them these notices from Tarpore village at a distance of 3 miles. The notice was sent by registered post in a letter prepaid registered and duly addressed to the tenant. The notice in one case reached within time while the notice in the present case on the other brother reached on January 2, 1962 even though it was despatched on December 26, 1961. The copy which was sent to the Mamlatdar on December 27, to the village Hansol at a distance of 10 miles even reached on December 28, 1961. In these circumstances the Prant Officer applies the meaning of service by post as given in Section 28 and he held that the service was effected before December 31,1961, as the registered letter would have been delivered before December 31, 1961, in the ordinary course of post. The Prant Officer also considered the fact that even though the tenant was actually served with the registered letter on January 2, 1962, he had not produced that envelope to rebut this presumption. The tenant having not proved the contrary, the Prant officer held the service was duly affected before December 31, 1961, which was the time within which this registered letter would have been delivered to the tenant in the ordinary course of post. The Revenue Tribunal had reversed that finding only on the ground that the scheme of this Act did not authorise service by post and, therefore, Section 28 of the Bombay General Clauses Act was not applicable. This view of the Revenue Tribunal being patently erroneous in law, the finding of the Revenue Tribunal that the notice was not served in the case also before December 31, 1961 must be reversed and the finding of the Prant Officer that the notice was duly served must be restored. In view of that finding, this Spl. C.A. 1167/65 must also succeed.

7. In the result both the petitions are allowed by setting aside the order of the (Revenue Tribunal and by restoring the order of the Prant officer in each case for the possession of the entire land to the petitioner. Rule accordingly made absolute. There should be no order as to costs in the circumstances of the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //